Scalia sees no abortion right in Constitution

Supreme Court Justice Antonin Scalia, during a luncheon in Buffalo on Wednesday, re-emphasized his view that women don't have a constitutional right to an abortion. His belief flies against the court's majority decision in the 1973 case Roe v. Wade, which found a constitutionally protected right of privacy that covers abortion.

"My votes in abortion cases have nothing to do with my pro-life views," Scalia said after his speech at the Hyatt Regency Buffalo. "They have to do with the text of the Constitution. And there is nothing, nothing in the Constitution that guarantees the right to an abortion."

At times flashing a prickly wit, Scalia also criticized the process for selecting new Supreme Court justices as being highly political today.

And he defended the court's 5-4 decision in the 2000 presidential election that stopped ballot counting in Florida and handed victory to George W. Bush.

The recurring theme throughout Scalia's 40-minute speech, and in answers to audience questions, was the importance of a strict, limited interpretation of the Constitution.

Scalia, who is the foremost conservative member of the Supreme Court, was appointed by President Ronald Reagan in 1986. .

Scalia devoted the bulk of his speech to the clauses in the First Amendment that ensure government may not restrict people's religious practices, nor impose religion on anyone.

Judicial rulings on those clauses - and the entire Constitution - must be based on their text, the authors' original intent or historical practice, he said.

In quoting George Bernard Shaw - using a phrase later appropriated by Robert F. Kennedy - Scalia said those who believe in judicial reshaping of the Constitution "dream things that never were."

The appropriate way to deal with an issue that demands updating judicial precedent or the Constitution is by legislative action or, where appropriate, a constitutional amendment.

After his prepared remarks, Scalia took questions and delved into several hot-button issues.

He dismissed the idea that abortion is a constitutionally protected right, but he also said the Constitution doesn't explicitly prohibit abortions, either. He indicated the issue ultimately should be decided by a constitutional amendment.

The fight over abortion rights already is heating up, as pro-choice groups dig in for a battle whenever Bush gets to make a Supreme Court appointment.

Picking up that theme, Scalia blamed the the bitter political fights over court nominations on the belief that judges are free to rethink the Constitution.

"Every time you're selecting a Supreme Court justice, you're conducting a mini-plebiscite on what the Constitution ought to mean," he said.

Scalia defended the court's decision in the 2000 balloting debacle, saying it properly returned authority in the matter to the Florida Legislature.

Organizers said 930 tickets were sold for the event, sponsored by the Chabad House of Western New York and the University at Buffalo Law School.

Do you even dare to compare the burning of witches and the Inquisition, with the political and religious persecutions of the twentieth century. ...the religious wars of the 14th through the 17th century ...the civility of those wars ... were conducted according to rules of engagement ... the mass slaughters of the ... wars of the twentieth century, where soldier and citizen, man and women, child and man were not distinguished.

Yes. You're a hopeless romantic. Their savagery was limited by their technology - not their morality.

Finally regarding women's suffrage: it is not a religious matter at all

It's a moral matter - and we're talking morals. Is it moral to deny women the vote when they want it? Yes you reply because denying them supports the institution of the family. Proving that people can justify anything ... including abortion. If you wanted to I'm sure you could twist theology to do so. Why be defensive about it? Slavery was justified. Burning witches - and many, many criminals - was justified. Crucifiction of enemies was justified. Persecution of dissenters was justified. Torture was justified. The list is endless.

Nowdays we consider all the above to be crimes of the past. But at the time the defenders of the faith were passionate defenders of all of them ... because they were not seen as crimes. Do you really think it's that much different today?

All the above says nothing about the crimes of the state - which are equally, if not more, numerous - and have their passionate defenders.

"It's a moral matter - and we're talking morals. Is it moral to deny women the vote when they want it? Yes you reply because denying them supports the institution of the family. Proving that people can justify anything ... including abortion. If you wanted to I'm sure you could twist theology to do so. Why be defensive about it? Slavery was justified. Burning witches - and many, many criminals - was justified. Crucifiction of enemies was justified. Persecution of dissenters was justified. Torture was justified. The list is endless."

Firstly, I am struggling with your argument concerning women's suffrage. Are you saying we should grant suffrage to women because they want it? Is it immoral to deny anyone what they want? The more interesting question is why women came to want it at all. But on your grounds for morality if children should want suffrage would it be immoral not to grant it them? Morality makes an impossition on the desires. It was Smerdyakov (or was it Ivan Karamozov) who declared that God is dead and that all things were permissable. Morality whether of God or merely a social contract restricts whatever we might want. (And by the way I am not advocating here that we should take away women's ability to vote. I am just considering why no premodern society even considered women's suffrage a serious issue. We assume that they were all pigs because they oppressed women, but did they have any arguments in support of it and were they reasonable?)

I said woman's suffrage was a political matter. It may be a moral matter insofar as laws and customs affect moral behavior and visa versa. But it is moral secondarily, woman's suffrage is foremost a political matter. It concerns the eligibility for voting. Tocqueville warned that democracy worships the idol of equality. I am simply raising a question as to the prudence of the modern trend to make women the equals of men in all things. The pagan and unreligious Aristotle regarded the household as a kind of aristocracy, not a democracy, where the wife and the husband each ruled in the things to which they were most fitted; that is to say that they are not equal to all tasks. The most obvious example is bearing children to which men are completely unfitted. Aristotle simply indicated that men were more fitted to voicing and defending the interests of the household. From my observations of women engaged in politics, this seems true. Women, in my opinion, have not fared well in democratic struggles. They are not the equals of men in the defending their interests.

Nevertheless, my argument above was not that women universally should be denied suffrage in a democratic society. Long before universal suffrage of women, many states granted women the vote who were propertied but had no husband, that is to say that the interests of the household were represented, not the individuals of the household. But perhaps you think our Founders were stupid in this matter as they were stupid in retaining slaves, though providing for the means and motive for ending slavery.

Moreover, I never claimed it was a religious matter. You are the one who claimed that religion accomodated it. I think that religion has remarkably little to say with respect to it. And if you read my argument with a little less passion and more consideration you would see that nowhere do I even elude to religion.

In considering all of the societies and various regimes that ever existed, it was never (or at least none come to mind and I have been acquainted with quite a few) the case that women in a democratic or republican form of government were given universal suffrage or the ability to hold office until the last century. That is remarkable. For women have ruled as monarchs in ancient regimes, medieval, Renaissance and modern, and yet, in a democratic or republican government not until recent have women been given suffrage. The difference may simply be that in an aristocracy, it is at least possible, if very rare, for the best to govern. Therefore if a woman of outstanding virtue and born of noble blood becomes monarch, her authority is regarded as legitimate. However, in democracy, equals rule. And it is my opinion that women are done a disservice when we threw them into the fray with men because men are by nature louder and stronger and if Aristotle is correct more opinionated. And also less likely to listen, especially to a woman . In the last analysis, men do not like being ruled by women, especially when they are considered equals. If a woman is better born and educated than a man as in a aristocratic government, men are more likely to acknowledge her superiority. But in a level battle field, they show no courtesy to the gentler sex to whom they ought show more courtesy. But then again why should a man show courtesy when the would-have-been lady dons armor and wields a sword like a man only less ably? Women who wear men's clothes resemble them as much as men who wear women's.

I find your following statement most remarkable in all that you say: "Yes you reply because denying them supports the institution of the family."

This is perhaps at the heart of the differences between us: namely a difference in the understanding of the importance of the institution of the family. It is an understatement to say that the family is the foundation of society. It is a self-evident statement, but our troubled society has trouble seeing what is self-evident. We prefer to look for the obscure and obfuscate what is clear. For if there are no children, there will be no state. And raising and educating children will ever be the most important task of parents and society. If it is a truth not known in society, it will be observed by others who in hindsight see why it had fallen.

P.S. I was first brought to the attention of this matter when a professor of mine, who is now a good friend asked me to read an article he was submitting for publication. It really is a social condition we take for granted and yet most societies have never really considered it because it never was a real issue.

Darrell Dobbs, Family Matters: Aristotle's Appreciation of Women and the Plural Structure of Society , American Political Science Review (1996), 90:74-89.

If a law affects a person, then the term "person" should be well defined.

Person IS well defined. It's a live, born human being.

Since the Constitution is a law which applies to all people in the U.S., then the term "person" should be determined at the national level.

It IS already defined at the national level. "Person" is a live, born human being. The Constitution requires that the Census count ALL "persons." The Census has NEVER counted fetuses or embryos, and has NEVER counted corpses.

What I think YOU'RE saying, is that you want "person" to be REDEFINED. To do that, you'll need a constitutional amendment.

Either fetuses are or are not persons. Since the Constitution is currently not clear on this, it should be made so.

The Constitution IS clear on this. Fetuses and embryos are NOT persons. If they were, the Census would count them. Like I wrote above, you seem to want to REDEFINE "person." (Let me take a wild guess, and guess that you want to redefine fetuses...and possibly embryos...as "persons.")

I see no reason for a "person" to cease being so by moving (or being moved) from one state to the next.

The main reason to NOT redefine fetuses, embryos--or dead people!--as "persons," except through a Constitutional amemdment, is that we are SUPPOSED to be a nation governed by the Rule of Law, rather than the Rule of Men. To have the federal government redefine fetuses, embryos, or dead people as "persons" by legislation would be violating The Law. The Supreme Law of the Land, to be specific.

Even beyond that, I don't think that any person who is true to the spirit of the Founding Fathers could ever support a Constitutional Amendment to make ANY form of abortion a FEDERAL crime. (A person who is true to the spirit of the radical Republicans of the Civil War era could support such an amendment, however.)

The Founders would absolutely NOT have made abortion a FEDERAL crime, because the ONLY federal crimes recognized by the Constitution are crimes against the United States (or crimes that occur outside the United States). The only federal crimes recognized by the Constitution are treason, counterfeiting, piracy, and crimes against the Law of Nations (e.g. counterfeiting ANOTHER country's currency).

There is NO federal crime of murder, under the Constitution. And the Founding Fathers certainly never would have supported including such a crime in the Constitution. (But the radical Republicans of the Civil War era would have.)

We're not talking about whether or not certain actions are allowed by the Constitution in the case of abortion. We are talking about who is to be protected by the Constitution.

That seems to be two ways of saying the same thing. If a constitutional amendment criminalizing abortion is passed, then fetuses and/or embryos would be "protected"...while abortion would not be an allowable action.

The Constitution doesn't clearly say "who" they are talking about. However, historically we can be certain that they meant to include fetuses in the definition of person.

No, absolutely not. Beyond any shadow of a doubt we know that "they" (the Founding Fathers, and all those that followed them for more than 150 years) meant to EXCLUDE fetuses from being "persons." If they had meant to INCLUDE fetuses in the definition of "person" pregnant women would have been counted as TWO persons in all of the Censuses.

Scalia is right on this issue. There is NO "right to choose" in the Constitution...but there is also NO "right to life" for the UNBORN in the Constitution.

I wonder very much whether Scalia would actually vote this way, if a FEDERAL law against partial birth abortion is passed, and challenged in the Supreme Court. My guess is that he would NOT hold such a law to be unconstitutional, even though it unquestionably WOULD be. That's why I don't have much respect for Mr. Scalia (or anyone that has held a position in the Supreme Court in the latter half of the 20th century).

"Every time you're selecting a Supreme Court justice, you're conducting a mini-plebiscite on what the Constitution ought to mean," he said."

"...a statement of the political realities which reveal that the Constitution is in fact a living document. Every time a political appointment is made the meaning of the document changes. Oliver Wendall Holmes recognized, and approved of, this more than 100 years ago. So did Chief Justice Marshall almost at the founding of the country." [I have elsewhere addressed your stance on Marshall. To recapitulate, Marshall was not a proto-Holmes. Holmes=demon. :) ]

Comptron's point (#470) is very poignant and on mark. You must read the previous paragraph of the article to understand Scalia's point regarding this statement. The unfortunate fact that many have come to believe the judge's role is to rethink the Constitution has led to the political fury over judicial appointments. I would disagree with Scalia, however, that it is a miniplebiscite on the meaning of the Constitution, because it is the Senate only who approves the appointment of the president and so it is an indirect election, the determination of a few on who has authority to rewrite the Constitution. And the current debate more concerns whether the Constitution ought to be viewed as enduring OR changing and therefore, as Computron concludes and I think correctly, dead.

I do wish you to consider Computron's argument. It is important that you understand the implications of viewing the Constitution as a living as opposed to an enduring law. Law must be enduring, especially the Foundational law, for another reason. For if the law constantly changes, it will loose its authority. As I have said I am reading de Tocqueville again and it brings to mind an observation of his.

He noted that Jefferson thought that before any bill was passed (I presume in the state or federal legislatures) it ought to be required that a year go by between its introduction and the vote and that no amendments be allowed. His reasoning was threefold (at least). Firstly that would require more deliberation on the part of the lawmakers and give them time to consider the worthiness of changing the law at all. For hasty laws are very harmful to good lawmaking. In all matters (except where necessity demands immediate action) it is prudent not to act upon the first usually impulsive judgment. However, it is also very true that bad laws, created more often by poor deliberation than ill-will, diminish the authority of the rest of the laws. Secondly in many state legislators of Jefferson's day the terms were only for one year, which would result in one legislature introducing a bill and the next passing it, preventing too many changes in the law and providing for better lawmaking because proposed bills would require agreement and deliberation by more than one legislature. Thirdly and most importantly, the consequence: fewer laws would be passed and those less changeable. There seems agreement among most of the shrewd judges of political matters that it is far better to endure a bad law (so long as it does not undermine the very foundations and purpose of society) than to enforce a good law that few obey (pipe smoking - the little sort -- comes to mind; Aquinas cited prostitution as another) AND even worse is to be shifting from one law to its opposite. As I stated above, if the law is constantly changing, its authority is greatly diminished. It leads to moral ambivalence and ambivalence to law as well. Although the legal and the moral are not the same, they are closely linked and depend on one another. In democracy there is the tendency to think that the sole authority of the law rests in the majority. We often forget that many of the laws, especially in the Constitution are designed to protect the rights of individuals and states from the majority and the tendency of the majority to think that it is the sole authority of law and morality. But if the law changes frequently with every majority there are two evil consequences. One: we begin to think that the sole author of law is the majority; and two: that author is arbitrary because the law is constantly changing. The conclusion is obvious: the majority alone determines what is right and wrong AND it may be whatever the present majority say it is, or to put it simply might makes right. If what is legal becomes illegal and again legal in the span of a few years, then not only that particular law but all laws appear arbitrary merely. And so all morals also appear so. Consider the harm of the Intolerance movement and the Prohibition amendments. (A side note: Jefferson did provide for a means for quick passage of bills requiring immediate action, by permitting any proposed legislation to be immediately voted upon but only passed by a two thirds majority.)

But the above paragraph is a consideration of easily changeable laws and not the Constitution which provides for the Framework of the Federal Government, imposing limits on it and defining its jurisdiction and that of the States. If the Constitution is to change with every new justice, not only the authority of the Constitution is diminished, but the very legitimacy of our federal government is called into question. Moreover, the Constitution is both a democratic and undemocratic instutition. It protects rights of the state and the individual from the majority. To say that the meaning of those limits and rights are to be reinterpretated with the changing times and in accordance with the predominant morality of the day, is to give to the majority absolute power without limit. The Constitution in large part limits the majority from being tyrant over all. To say that the Constitution should be at the mercy of the whims of a miniplebiscite is to render impotent the Constitution as a limit on the power of the majority.

What makes our country enduring is not so much our Constitution: many nations, even the Soviet Union, had Constitutions delineating the limits of governments and the rights not to be infringed by that government. What has caused America to last so long while other Constitutional democracies have failed to take root is the respect for and acceptance of that Constitution. For most democracies of the twentieth century, the Constitutions created were mere words on paper, not understood and even less adhered to by either the governed or the governing bodies. Perhaps along with Great Britain, America was unique: the Constitution was generally accepted, a few particulars merely debated. It was a real Constitution in that it established not merely a theoretical structure but the real structure of government. The amazing fact of our Constitution is that it imposed limits on the majority and both the majority and all those in positions in government agreed to those limits. This is possible only if it is regarded in large part as unopen to interpretation or to interpretation with limits. The federal judiciary was instituted to safegard those limits especially from a temporary and passionate majority, NOT to rewrite the limits themselves. I recommend that you read chapters on the state and federal judiciaries (chapters 6 and 7 of volume one).

A fetus is not that innocent. Its need for another's body in early pregnancy makes its claim to life subject to the consent of the mother. No one has the right to appropriate another's body for its own purposes, without consent of the latter. See - US Constitution, the rights of individuals to be secure in their persons.
You want rapists to force women to endure pregnancy and childbirth. Do you know what you're asking?

Your radical ignorant view of the matter leaves no room for common sense and the Constitution.

Once again you ignore the salient point. The fetus HAD NO CHOICE IN THE MATTER. 99.99% of the time the MOTHER INVITED THE FETUS INTO HER WOMB BY CONSENTING TO SEX. In other words, she gave the consent when she agreed to engage in the activity that would ultimately produce the life. Once that life exists, she cannot then turn around and say oops, sorry I changed my mind.

And your constant repetition of the bogus rapist argument will not make it any more pertinent. You don't base ANY law on something that occurs less than .05% of the time, especially when it is a life and death decision.

And you don't determine the existence of life on an individual's level of dependence. By your argument, we could take a fish out of water, lay it on the sidewalk, and when it dies say "see, it was never alive because it couldn't survive without water". It's a faulty argument because you know that the fish was indeed alive.

Once again you ignore the salient point. The fetus HAD NO CHOICE IN THE MATTER.

Whether or not it "chooses" to be dependent is irrelevant. Its inferior claim to life stems from its dependency on another's body.

99.99% of the time the MOTHER INVITED THE FETUS INTO HER WOMB BY CONSENTING TO SEX.

I don't buy your numbers, and besides, your philosophy forces a woman to endure the pregancy and childbirth forced on her in cases of rape and statutory rape. Even if it's involuntary one time in 10000, if you make the exception for rape and incest, you're putting an asterisk by your definition of "life", and are thus inconsistent. I'm resolving the asterisk problem, with my philosophy. If you DON'T make the exception for rape and incest, you're with the rapist for control of the woman - a barbaric position, equally unacceptable.

By the way, are you willing to say what you would do in the case of rape? How would you handle that? Let's see you take a stand on that. Your silence so far has been deafening.

In other words, she gave the consent when she agreed to engage in the activity that would ultimately produce the life. Once that life exists, she cannot then turn around and say oops, sorry I changed my mind.

What if it's one of those hundreds of times a year in this country when there's a rape followed by conception? Then it's not such an important life to you? Or are you with the rapist? Even if she consented to sex and became pregnant she has the liberty to stop the seizure (which the child did not choose, but that's irrelevant) at any time while it is being committed. Once the child is independent, it's no longer a seizure, and she may not abort.

And your constant repetition of the bogus rapist argument will not make it any more pertinent

You've got to pull your head out of the sand on this one. Ignoring the fact of rape won't make it go away. It does happen, and you skirt around it like Clinton trying to avoid a deposition. You've got to take responsibility for resolving that issue in your philosophy on abortion, just as you want the pregnant woman to take responsibility for her choice of getting pregnant. An inconsistent principle is no principle.

State legislatures should decide that governmentally protectable life begins at physical independence from another.

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